Declaration of Conformity
Declaration of Conformity with the German Corporate Governance Code, issued by the Supervisory Board and Management Board in accordance with Section 161 of the German Stock Corporation Act
Pursuant to Section 161 of the German Stock Corporation Act (Aktiengesetz – AktG), the supervisory board and management board of exchangelisted stock corporations are obliged to issue an annual declaration stating that the recommendations of the "Code of the Government Commission on German Corporate Governance" have been and will continue to be complied with and, if applicable, specifying which recommendations have not been or will not be applied. Any departures from the recommendations must be explained.
The Management Board and Supervisory Board of ElringKlinger AG hereby issue a Declaration of Conformity pursuant to Section 161 AktG, stating that the Company has complied with, currently complies with and will in future comply with the recommendations of the "Government Commission German Corporate Governance Code" in the version dated February 7th, 2017, with the following exceptions.
- Section 3.8 paragraph 3: The deductibles agreed for the Supervisory Board as part of the company's D&O insurance differ from those specified for the Management Board.?
The D&O insurance policy for the Supervisory Board contains a deductible. However, this deductible is lower than that defined for the members of the Management Board. The company is of the opinion that inconsistency in the treatment of the Management Board and the Supervisory Board is objectively justified due to the different functions of the aforementioned bodies. Legislators accept such a differentiation, as they have not specified any regulations for the Supervisory Board that are comparable to the provisions governing deductibles for Management Board members.
Section 4.1.5: When filling managerial positions in the enterprise, suitability and qualification of the candidates were taken into consideration by the Management Board primarily.
When filling managerial positions the Management Board orients itself by requirements of the corresponding position and looks for the best possible individual, fulfilling these requirements. If there are more candidates with similar qualifications, the Management Board takes diversity into consideration and aims for an appropriate consideration of women. The Management Board defined targets for the share of women on the two management levels below the Management Board pursuant to the German stock corporation law.
- Section 5.1.2: When appointing the Management Board, the Supervisory Board orients itself by suitability and qualification. No age limit has been set for members of the Management Board.?
The members shall be selected prior to their suitability and qualification. In the company’s view, the special weighting of further criteria given by the Code would limit the selection of potential candidates for the Management Board. The Supervisory Board committed targets for the share of women in accordance with the German stock corporation law to zero percent. The definition of another target would have the consequence that a further female member of the Management Board has to be appointed or a change of the current Management Board occupation has to be executed.
There is no general age limit for Management Board members. The main focus for ElringKlinger is on the qualifications as well as the experience required by candidates to be appointed to the board. Given the provisions set out in the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG), which does not apply directly to this case but at the very least provides a basis for analogous application, the company is of the opinion that the approach of specifying an age limit is inappropriate.
- Section 5.3.3: At present there is no Nomination Committee to propose possible candidates for the election of shareholder representatives to the Supervisory Board.?
Given the current size of the company's Supervisory Board, both the Management Board and the Supervisory Board are of the opinion that there is no need to form a Nomination Committee.
- Section 5.4.1 paragraph 2: Regarding the composition of the Supervisory Board, concrete objectives will not be predefined. To date, no profile of skills and expertise has been prepared for the entire Board.?Neither regular limit of length of membership nor age limit has been set for members of the Supervisory Board.?
Relevant selection criteria for the appointment of the Supervisory Board are also suitability, experience and qualification. A commitment to specifications concerning prospective appointments constricts flexibility without ulterior advantage for the company. This applies all the more as the representatives of the shareholders can temporarily only elect six members of the Supervisory Board with codetermination. Within this context, the specifications mentioned in the Code’s recommendation are per se further important criteria for the constitution of the Supervisory Board. So because of the mentioned reasons there is no need of a predefinition of concrete objectives except for the specification of Section 111 (5) AktG. The share of women on the Supervisory Board is already 30 percent. The legal requirements are fulfilled.
In the past, no profile of skills and expertise was prepared for the entire Board. However, the company intends to draw up such a profile in the future. The next Supervisory Board election will take place as scheduled in 2020. The profile of skills and expertise is to be drawn up by this date at the latest.?
A regular limit of length of membership in the Supervisory Board is not defined. Each membership in the Supervisory Board is limited until the new election of the Supervisory Board by the Annual General Meeting as specified by the German stock corporation law. It is up to the Annual General Meeting to decide about the reelection of a member of the Supervisory Board or not.
No general age limit has been set for members of the Supervisory Board, as the expertise of the individual members is considered an overriding priority. Within this context, experience in particular is seen as an integral element. Given the provisions set out in the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG), which does not apply directly to this case but at the very least provides a basis for analogous application, the company is of the opinion that the approach of specifying an age limit is inappropriate.
- Section 5.4.1 paragraph 4 sentence 1: As no profile of skills and expertise for the entire Board has been prepared to date in accordance with Section 5.4.1 paragraph 2, possible proposals by the Supervisory Board cannot be aimed at fulfilling the overall profile of required skills and expertise.?
- Section 5.4.3 paragraph 3: Proposals regarding candidates for the Chair of the Supervisory Board are not disclosed to shareholders.?
The election of the Chairperson of the Supervisory Board is an internal affair and in the sole responsibility of the Supervisory Board. The Supervisory Board is best placed to assess the suitability of the candidates. Against this background, the company is of the opinion that prior disclosure of the names of candidates for the Chair of the Supervisory Board would not be appropriate.
- Section 5.4.6 paragraph 2 sentence 2: Compensation of the members of the Supervisory Board consists of a variable or performance-based component that is determined according to the Group's earnings before taxes in the financial year just ended.?
The company is of the opinion that the current structure of Supervisory Board compensation adequately reflects the responsibilities of the Supervisory Board in respect of business performance. Profitability is of key importance to the sustained development of the company. This aspect is to be reflected in the assessment of compensation.
Dettingen/Erms, December 4th, 2018
On behalf of the Supervisory Board